Dunning v. Dunning
| Decision Date | 10 November 1952 |
| Citation | 249 P.2d 609,114 Cal.App.2d 110 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DUNNING et al. v. DUNNING et al. DUNNING v. DUNNING. Civ. 18993. |
Covey & Covey, Hollywood, William Solomon, Los Angeles, for appellant.
John L. Mace, Los Angeles, for respondent.
Plaintiff and respondent brought an action to recover upon the terms of a property settlement agreement providing for payment of money for the support of plaintiff and the minor children of plaintiff and defendant. The issue as to the support of the children having been settled by stipulation, this appeal concerns only the judgment for the plaintiff wife based upon support and maintenance provisions for her benefit contained in the property settlement agreement. The issue presented in the court below and on appeal is whether the contract provisions for periodic payments by the husband to the wife were superseded by their incorporation in the interlocutory judgment of divorce and hence unenforceable by an action upon the contract. The occasion for this action arises from the fact that the court in the divorce action by orders modifying the interlocutory judgment reduced the payments required of the husband to amounts substantially less than the stipulations of the contract.
From the agreed statement on appeal it appears that husband and wife, subsequent to the commencement of her action for divorce, had entered into a 'property settlement agreement' which provided for the assignment of certain shares of stock and Treasury bonds to the wife and other shares of stock to the wife and each of the two children. With reference to payment of money to the wife, the agreement provided as follows:
'Said payments shall continue during the life of Second Party and until she remarries a person other than First Party.
'If Second Party shall remarry a person other than First Party, First Party shall thereafter pay to Second Party for the support and maintenance of each of said minor children the sum of Forty-six and 66/100 ($46.66) Dollars each per week, payable weekly so long as each such child is a minor.
'First Party covenants and agrees to pay to Second Party in addition to the amounts hereinabove agreed to be paid for the support and maintenance of Second Party and said minor children, forty per cent (40%) of his annual net income (as defined and computed under the Federal Income Tax Rules and Regulations) from all sources in excess of the sum of Thirteen Thousand ($13,000.00) Dollars, before deduction for income taxes, social security, and unemployment insurance. * * *.'
'Said payments shall continue during the life of Second Party and until she shall remarry, and shall likewise continue after the remarriage of Second party for the benefit of said minor children until both of said children shall have attained their majority.'
The parties further agreed as follows: (Emphasis added.)
Again referring to the agreed statement, it appears that an interlocutory judgment of divorce (by default) in favor of the wife was entered on April 11, 1950, approximately one month after the execution of the agreement. The transcript of the testimony at the default hearing discloses the following:
'Mr. Mace (Counsel for plaintiff): We would like to offer a copy (of the agreement), your Honor; we are not asking for it to be approved.
'The Court: Well, if you are not asking for its approval, why----
'Mr. Mace: But we are incorporating its terms in the interlocutory decree.
* * *
* * *
'The Court: All right, the original will be received as Plaintiff's Exhibit 1; a copy thereof will be substituted, * * *
'Mr. Mace: Yes, your Honor.'
By its interlocutory judgment of divorce the court did not approve the property settlement agreement, nor did it state that it 'was made a part' of the interlocutory judgment. However, in addition to other provisions, the interlocutory judgment contained directions for payments by the husband in precisely the language employed in the agreement and which language has been hereinabove quoted. Appellant contends that the foregoing decree presents a situation in which an agreement for the payment of sums for support and maintenance has been incorporated in and superseded by a judgment of the superior court, Hough v. Hough, 26 Cal.2d 605, 609, 610, 160 P.2d 15, and under the authority of the cited case no action may be maintained upon that portion of...
To continue reading
Request your trial
-
Bank of America Nat. Trust & Sav. Ass'n v. State Bd. ofEqualization
...26 Cal.2d 453, 456, 159 P.2d 630; Meyer v. State Board of Equalization, 42 Cal.2d 376, 381, 267 P.2d 257; Dunning v. Dunning, 114 Cal.App.2d 110, 114-115, 249 P.2d 609.) Was The Bank A The crucial question in this case is whether the Bank was a 'retailer' as that term is defined in its appl......
-
Solley v. Solley
...(1956) 47 Cal.2d 121, 123, 302 P.2d 11; Shogren v. Superior Court (1949) 93 Cal.App.2d 356, 358, 209 P.2d 108; Dunning v. Dunning (1952) 114 Cal.App.2d 110, 113, 249 P.2d 609.) In the absence of a Nevada statute or case law we will, on principles already adverted to, look to California law ......
-
Cohon v. Department of Alcoholic Beverage Control
...in accordance with applicable principles of law. (Estate of Platt, 21 Cal.2d 343, 352, 131 P.2d 825; Dunning v. Dunning, 114 Cal.App.2d 110, 114-115, 249 P.2d 609; Mangini v. Wolfschmidt, Ltd., 192 Cal.App.2d 64, 73, 13 Cal.Rptr. 503.) Accordingly, the applicability of certain statutes to a......
-
Bratnober v. Bratnober
...to reexamination by the court at any time. Civ. Code, § 139; Woolams v. Woolams, 115 Cal.App.2d 1, 7, 251 P.2d 392; Dunning v. Dunning, 114 Cal.App.2d 110, 114, 249 P.2d 609. Plaintiff husband maintains that the disclosure was made at the divorce trial as appears from his own testimony at t......